Any discussion on how to
tackle the problem of rape(s) in India invariably throws up conflicting views
on the issue of whether rape should attract the death penalty. While there is
one view which is against the death penalty in general, this post will initially
proceed on the assumption that the death penalty ought to be retained for
certain grave offences (with there being considerable scope for debate on what
those offences ought to be) though some references to general arguments for (“Retentionist”) and against (“Abolitionist”) the death penalty are
inescapable.
The most convincing argument
against imposing the death penalty for rape is that it provides an incentive
for the perpetrator to kill his victim so as to reduce (if not completely
eradicate) the chances of being apprehended and convicted for rape. The
correlation between killing the victim and reducing the chances of being
apprehended is difficult to refute. The implicit assumption that the
perpetrator of rape does not always want to kill the victim anyway is also one
that cannot be easily faulted.
The argument usually advanced
for imposing the death penalty for rape is that it will deter the perpetrator
(this is also a general Retentionist argument). The most common ground on which
this argument may be questioned is that the quantum of punishment does not act
as an effective deterrent unless the risk of apprehension and conviction is
considerable. A classic Abolitionist argument is that increasing the risk of
apprehension and conviction (by having an effective police and criminal justice
system respectively) will, by itself, act as an effective deterrent and make
the quantum of punishment immaterial. However, improving the effectiveness of
the police and the criminal justice system is easier said than done.
There are inherent physical
and practical limits to which effectiveness of the police can be improved,
especially in a country like India which has a large population and
insufficient resources to provide for a large and/or technologically superior
police. In any case, while there are several other measures that will
supplement policing and increase the risk of apprehension (viz. sensitizing the
police to encourage victims to report crimes, improving lighting in public
places, etc.), increasing the risk of apprehension alone (without a
corresponding increase in the risk of conviction) would not, by itself, act as
an effective deterrent.
Improving the criminal justice
system is fraught with problems not only of implementation alone but also of
principle. While the primary purpose of a criminal justice system is to convict
perpetrators, another equally important purpose is to ensure that innocent
persons are not convicted. “It is better that a thousand criminals go free than
one innocent man condemned.” In order to ensure that no innocent person is
convicted, a criminal justice system must have certain safeguards (high
standard of proof, rigid procedures, etc.) in place. At the same time, having
these safeguards in place automatically makes it more difficult to convict
perpetrators. While our criminal justice system can certainly be improved,
there is a limit to how much it can be tinkered with without increasing the
danger of innocent persons being convicted.
Therefore, even if increasing
the risk of apprehension and conviction can (in theory) act as an effective
deterrent by itself, there are practical limits to how much this risk can (and
ought to be) increased. The effectiveness of a deterrent should, therefore, be
regarded as a function of the risk of apprehension and conviction as well as
the quantum of punishment. Assuming the risk of apprehension and conviction to
be constant (given the limited measures that can be taken towards this), the
correlation between the quantum of penalty and the effectiveness of a deterrent
becomes clearer.
Once we recognize this
correlation, the Abolitionist argument essentially boils down to saying that
life imprisonment is as effective a deterrent as the death penalty. The
argument is sought to be supported by relying on statistics like (i) a
comparison between crimes in Retentionist countries and Abolitionist countries;
and (ii) a comparison between crimes before and after the death penalty was
abolished in a country that was initially Retentionist but subsequently turned
Abolitionist. Theoretically, a comparison between crimes before and after the
death penalty was introduced in a country that was initially Abolitionist but
subsequently turned Retentionist may also exist, though I am not aware of any such
country.
None of the above statistics measure
deterrence. By counting the number of crimes committed (let us assume these are
all genuine instances of crime), these statistics are actually comparing non-deterrence
(number of instances where the deterrent has failed to be effective). It is
impossible to calculate the number of instances where the deterrent has been
effective as the likelihood of people voluntarily admitting that they did not
commit a crime because they were afraid they might be awarded the death penalty
is extremely low. Indeed, this might even be a sub-conscious factor for most. Furthermore,
the difference in the number of crimes committed may also be attributable to
the differences in the effectiveness of the police and the criminal justice
system. This is why even the Retentionists are unable to rely on any statistics
to show that those who commit crimes in an Abolitionist country would not have
done so if the country had been Retentionist.
While a cogent empirical basis
for both the Retentionist as well as Abolitionist views on the relative
deterrent effect of the death penalty vis-á-vis life imprisonment is lacking, the soundness of
the Retentionist premise that a higher penalty acts as a more effective
deterrent (all other factors remaining constant) is difficult to refute. Accordingly,
we now proceed on the assumption that the death penalty acts as a more
effective deterrent for all crimes including rape. Though there are a variety
of other measures that may (and should) be taken to deter perpetrators of rape (including addressing the way our society treats women generally),
the question is whether rape should also be made an offence that attracts the
death penalty (in addition to these other measures).
The advantage of imposing the
death penalty for rape (viz. more effective deterrent) has to be balanced with
the disadvantage (viz. providing an incentive for perpetrators to kill their
victims to reduce chances of apprehension and conviction). Notwithstanding one
(albeit misconceived) view that the life of a rape victim is “living hell” or
“living death”, let us assume that it is preferable for rape victims to be left
alive rather than murdered. Once we accept this premise, imposing the death
penalty for all cases of rape is more or less out of the question. However,
imposing the death penalty for cases of rape coupled with murder and/or rape
resulting in death of the victim may be less objectionable.
Take the instance of the
recent gangrape of a 23 year old woman in New Delhi, where the victim died 13
days after she was raped. While the perpetrators have now been charged with
murder (which attracts the death penalty), the likelihood of their being
convicted of the same is low primarily because the prosecution will be unable
to prove that the perpetrators intended to kill their victim. The defence is
likely to argue (quite convincingly) that if the perpetrators really wanted to
kill their victim in order to escape apprehension, they had ample opportunity
to kill both the victim and her companion (which they did not do).
Imposing the death penalty
for cases of rape leading to death of the victim (including by traumatic suicide)
is likely to retain the advantages of imposing the death penalty for rape while
circumventing its disadvantages. Perpetrators of rape who intend to kill their victim
anyway are unaffected. Perpetrators of rape who do not have any predetermined intention
of killing their victim would nevertheless be hesitant to commit rape because the
possibility of the victim subsequently committing suicide cannot be ruled out. Perpetrators
of rape would also be hesitant to kill their victim with a view to reduce chances
of apprehension and conviction because being apprehended would attract the higher
penalty of death.
